Tyco Australia Pty Ltd t/a Wormwald v The Owners Corporation Strata Plan 49302 [2012] NSWCA 112

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tyco Australia Pty Ltd t/a Wormwald v The Owners Corporation Strata Plan 49302 [2012] NSWCA 112 Hearing dates: 20 April 2012 Decision date: 01 May 2012 Before: Macfarlan JA at [1] Sackville AJA at [1] Decision: 1 Application for leave to appeal dismissed. 2 The applicant to pay the respondent's costs of the application for leave to appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - application for leave to appeal against a discretionary interlocutory decision- primary Judge dismisses motion to strike out the statement of claim as pleading statute barred causes of action - whether factual issues better left to trial - whether any error warranting appellate intervention against the decision - application dismissed Legislation Cited: Building Services Corporation Act 1989 District Court Act 1973 Environmental Planning and Assessment Regulation 2000 Home Building Act 1989 Limitation Act 1969 Limitation Act 1969 Uniform Civil Procedure Rules 2005 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 CSG Ltd v Fuji Xerox Australia Pty Ltd [2011] NSWCA 335 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979] Ch 384 Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 Category: Principal judgment Parties: Tyco Australia Pty Ltd t/a Wormwald (Applicant) The Owners Corporation Strata Plan 49302 (Respondent) Representation: Counsel: K Rees (Applicant) G Sirtes SC with D Meltz (Respondent) Solicitors: Matthews Folbigg Pty Ltd (Applicant) Szekely & Associates (Respondent) File Number(s): 2012/23161 Decision under appeal Citation: The Owners Corporation Strata Plan 49302 v Tyco Australia Pty Ltd t/a Wormwald Date of Decision: 2011-10-21 00:00:00 Before: Olsson DCJ File Number(s): 2010/101338